Last week, the President of the United States did not take the Constitution seriously. He ordered the murders of 11 people who were riding in a speedboat in the Caribbean Sea around 1,300 miles from the U.S.
Afterward he said he did so because he believed that they were members of a “narco-terrorist gang” and were delivering illegal drugs to America. He also did so, he said, as a “message” to other drug dealers who should fear a similar fate.
The boat had no ability to reach the U.S. According to the former head of drug interdiction for the Department of Justice, this so-called boat gang is not known for trafficking in illegal drugs. The crimes that the president said these folks committed did not occur in the U.S., and if they had, do not permit the imposition of the death penalty.
He offered no evidence to support his claims and didn’t even suggest that the riders in the boat posed a threat to the American military personnel who killed them. He couldn’t say if anyone in the boat was an American.
When he was asked for the legal authority for these killings, President Donald Trump replied that these folks were waging war on the U.S., and, because he is the president of the United States, he can do as he wishes to them.
These are constitutionally ignorant, morally repugnant, profoundly erroneous responses from a person who has taken an oath to uphold the Constitution.
Here is the backstory.
When British monarchs wanted to dispose of inconvenient adversaries, they often accused them of vague crimes because they were able to define the crime however they saw fit. St. Thomas More, Henry VIII’s former Lord Chancellor, was executed for his silence. The monarch’s target was given a quick trial and then often a slow and excruciating public death – to send a message.
Mindful of the tyrannical impulses of monarchs and familiar with British history, even personally aware of folks in the colonies charged with crimes in London — where they had never been — and transported there for prosecution, Thomas Jefferson and James Madison, the Founding Fathers most responsible for crystallizing the American ethos of natural rights and due process, crafted founding documents that articulated condemnations and prohibitions of tyranny and tyrannical behavior here.
Thus, Jefferson’s words in the Declaration of Independence characterize human rights as the gift of the Creator, which cannot be taken away by executive decree or legislative enactment – ut only by a jury verdict.
And Madison’s words in the Constitution’s Fifth Amendment declare that “no person shall be… deprived of life, liberty, or property without due process of law.” The use of the word “person” makes it obvious that due process applies to all human beings.
Due process requires a fair jury trial, with counsel and the opportunity for confrontation of witnesses and evidence produced by the government. It also requires proof of guilt beyond a reasonable doubt and to a moral certainty to a neutral jury, not to the accuser. And it requires conviction prior to the imposition of a legislatively prescribed penalty.
This was novel and radical in 1791, when the Bill of Rights was ratified, but it is neither novel nor radical today. Today, due process is the foundation of American law. It is what lawyers call black-letter law: Those in government are expected to know it and understand it and abide by it.
Until now.
Hellbound and Down 